Deyo's Executors v. Jones' Executors

By the Court,

Nelson, Ch. J.

The only question in this case is, whether the admission of Mrs. Jones, the executrix, was sufficient to take the note of her testator, in question in this suit, out of the statute of limitation. The rule is not disputed, that the admission of one joint executor for this purpose is available against all; 15 Johns. R. 3 ; 4,Cowen, 493 ; but was it sufficiently full and unqualified within the cases in this court, 3 Wendell, 187, Id. 536, 9 Cowen, 675, 7 Wendell, 267 ? Without referring particularly to these cases, I may say that the admission, to avoid the statute, must amount to an unqualified acknowledgment of the debt, disconnected with any circumstance indicating an intention not to become liable upon it. This is the result of the more recent authorities, and to which we intend to adhere. Applying this test, I am of opinion the proof on the part of the plaintiffs was defective, and that the nonsuit was rightfully granted.

Mrs. Jones had instituted proceedings before the surrogate for her share in the estate of her father, and this note, which had been given by her deceased husband to her father in his lifetime, was presented by the executors as an abatement of the amount in the "nature of an advancement, agreeably to the directions of the will. She resisted this application of the note, upon the ground that it was barred by the statute. R. Deyo, her brother, and one of the plaintiffs, also resisted accounting for certain notes against him for the reason that they were discharged by proceedings under the insolvent act. While the case stood or. this footing before the surrogate, a compromise was proposed and acceded to by the counsel, and which is no doubt accurately detailed by the surrogate, for he acted upon it in settling his decree in the matter. It was agreed that each should be charged with their respective notes in settling their accounts with the estate; in other words, she acknowledged the validity of the note in question for the purpose of using it in ascertaining the amount of her distributive share, and fot that only. Even the admission to this extent can hardly be considered voluntary, for the surrogate states, he advised her counsel that he could not allow her distributive share without deducting the note ; and on looking at the provisions of the will there can be no doubt about the correctness of the opinion. The ground, however, upon which I place the case is, that the admission was made by Mrs. Jones for a particular purpose, which has been answered, wiLhont any intent of charging the estate she represented beyond it, and, indeed, insisting upon the statute, in effect, beyond the particular concession.

New trial denied.